Original Public Meaning and "Contemporary Expected Application"

JB

I had wanted to respond to Larry Solum's discussion of my most recent post on originalism.

Larry argues:

[E]vidence about original expected applications can be relevant to the original meaning of the constitutional text. But to make it relevant you need to show how and why. But note that this same gap is present in Balkin's own argument. Balkin writes: "We do not live in a world with the same assumptions about the power of school officials over their students, just as we do not think that the original understanding of libel, profanity, sexuality explicit speech or commercial speech should apply either. Our modern doctrines are consistent with original meaning of "the freedom of speech"" But he doesn't tell us how and why the contemporary expectations are relevant to the "original public meaning" of freedom of speech.

There is an important theoretical point here--one that likely has been made before, although I'm not aware of a particular source. Balkin's distinction between original public meaning and original expected applications is important and theoretically crucial. But there is a similar gap between original public meaning and contemporary expected applications. But whereas original expected applications provide relevant, probative, but not conclusive evidence about the original public meaning of the constitutional text, contemporary expected applications rarely provide such evidence.

I was initially puzzled by Larry's argument. I do not think-- and I have never claimed-- that something called "contemporary expected application" is evidence of original public meaning. At most I have argued that people living in the present must try to apply original public meaning to their present circumstances. So contemporary understandings and expectations might inform how we apply original public meaning and underlying principles today, but ordinarily we would not look to them as evidence of what the words in the Constitution originally meant, at least if we have older, contemporary evidence of the public meaning of words.

For this reason, I wouldn't agree with Larry that there's a "gap between original public meaning and contemporary expected applications" that is "similar" to the gap between "original expected applications" and original public meaning." "Contemporary expected applications" plays no role in my views about how to ascertain original public meaning, while at least original expected applications can be useful in some respects-- as Larry points out and as I shall describe in more detail a moment. For that reason, I don't think I have any obligation to "tell . . . how and why the contemporary expectations are relevant to the `original public meaning' of freedom of speech" because I don't think they are relevant to discerning "original public meaning." At most they are relevant evidence about how to apply the Constitution's meaning in the present.

For those of you who aren't up on the beginnings of this discussion, here's my theory in a nutshell: I argue that constitutional interpretation requires fidelity to original public meaning but not to original expected application. Original public meaning is what the words used meant to competent speakers of the language in the relevant political community at the time of adoption. Original expected application is how people at the time expected those words would be applied to concrete situations in their world. Original public meaning is a proper object of constitutional fidelity, while original expected application is not.

This theory is based on the distinction between meaning and application. This distinction is not perfectly airtight, but neither is it illusory. For example, the ban on "cruel and unusual punishments" requires us to decide today how we should apply the original public meanings of the words "cruel and unusual." It does not require us to follow how people in 1791 would have applied the concepts of "cruel and unusual." Some punishments that they believed were not "cruel and unusual" could nevertheless be unconstitutional today when we apply the original public meaning of the text in our current world. The present day command that we must apply in present circumstances is the text's original public meaning. But the law does not command us to follow how the adopting generation might have expected the text would be applied.

Given this theory of interpretation, original expected application can be useful to constitutional interpretation in four distinct ways, which should not be confused with each other. Two of these ways concern how we use original expected applications as evidence of the original public meaning of the text, one of them concerns how we ascertain the principles underlying the text, and one of them concerns how we should apply text and principles to concrete situations in our own world.

First, original expected application is relevant to contemporary interpretation because it is evidence of the original public meaning of the individual words in the text. We might want to know, for example, whether the words "equal" and "protection" had a different meaning in 1866 than they do today. In this case, original expected application serves much the same function as a dictionary from 1866.

Second, original expected application can shed light on original public meaning because original public meaning includes generally recognized terms of art. Original expected application is evidence of those terms of art. It helps us determine whether the words of the text in combination-- for example "equal protection of the laws"-- uses a generally recognized term of art at variance with ordinary usage. "Due Process of Law" is a term of art that has a long history, and its meaning as a term of art changes over time. Its meaning as a term of art in 1866 is different than its meaning in 1791, for example. My study of the history of the Fourteenth Amendment, however, suggests that "equal protection of the laws" was not a generally recognized term of art in 1866.

Third, original expected application is relevant in order to determine what are the principles underlying a text with relatively abstract and general terms. We look to the justifications and arguments people made for the words they chose in order to see what principles they were trying to articulate through their choice of words. However, the principles we derive from history are not the same as original expected applications. (For a more detailed explanation of this point, see my discussion here). The principles underlying the text should be at roughly the same level of abstraction as the words used.

For example, my research into the history of the Fourteenth Amendment shows that the text "equal protection of the laws" meant to establish, among other things, constitutional principles against caste and class legislation. The generation that adopted the Fourteenth Amendment nevertheless expected that states could ban whites and blacks from marrying each other. Today, however, I would argue that laws banning racial intermarriage would violate the prohibition on caste and class legislation.

Fourth, the original expected application is relevant in order to determine the best way to apply the text and principles to concrete situations. (This goes back to my basic distinction between meaning and application. Original expected application can be evidence of public meaning and it can also be an argument for correct application. But these are different ways of using it.) However, original expected application may not be very persuasive evidence of correct application, because the proper application of text and principle to concrete situations is heavily dependent on social contexts and social understandings. As time passes, the original expected application may be less and less useful for deciding the best way to apply the text and underlying principles to contemporary problems. The case of interracial marriage mentioned above is one example. Here is a second: The original expected application of "equal protection of the laws" was thought consistent with the coverture rules, under which women lost all of their rights upon marriage, under the fiction that they surrendered them to their husbands by agreeing to marry. In 1866 people thought that this practice was perfectly consistent with the words "equal protection of the laws," and with the underlying principles of equal citizenship and the ban on class and caste legislation. I do not think that stripping women of all rights upon marriage today would afford them equal protection of the laws, whatever people thought back then.

This brings me back to Larry's post. Larry now postulates another category that he calls "contemporary expected application." I do not use this concept in my work, so I will have to do the best I can in responding to his points. But three things are worth noting at the outset about this new category.

First, it has very little probative value for discovering original public meaning. It matters, if at all, with respect to application of original public meaning.

Second, "contemporary expected application" it is not the same thing as contemporary understandings and values. Rather, it involves contemporary beliefs-- to the extent people have them-- about how to apply the original public meaning of the Constitution. (Just as original expected application involves beliefs about how to apply the original public meaning of the Constitution at the time of adoption.)

Third, the concept of "contemporary expected application" like the concept of "original expected application" is a third party concept, not a first party concept. It is what other people contemporary with the interpreter think about how to apply the Constitution's text and principles, not what the interpreter thinks.

To me this last point is central. The Constitution's text is a present-day command that requires interpreters in the present to apply it in the present, using what ever resources (including past doctrines and precedents) are at their disposal. To do this interpreters inevitably draw on contemporary understandings and values that are part of their ways of thinking. But that is not because the interpreter looks to "contemporary expected application" as evidence of what he or she should believe but simply because the interpreter lives in the present. It is worth noting that both originalists and non-originalists live in the present and have contemporary understandings and values that they bring to the task of interpretation.

So the concept of "contemporary expected application" is not the same thing as the interpreter's own understandings and values, which are inevitably contemporary because the interpreter lives in the present. And it is not evidence of what other people's beliefs and values are generally. Rather, it is evidence of what other people expect about how to apply the original public meaning of the constitutional text. There may well be some convergence on those questions, but on other issues-- for example on the most heated constitutional issues of the day-- there may be significant divergence and a distribution of different positions.

So understood, "contemporary expected application" probably plays a limited role in constitutional interpretation to the extent that it differs from the interpreter's own best sense of how to apply the Constitution. Of course, sometimes a interpreter may use doctrines that specifically look to contemporary values and understandings to flesh out the meaning of phrases like "cruel and unusual" or "due process of law." But in that case the interpreter looks to contemporary values and understandings generally, as opposed to how people think the original public meaning of the Constitution should be applied.

However, there is another way that "contemporary expected application" might be helpful to the interpreter. And it could be very helpful indeed. If by "contemporary expected application" all you mean is the existing set of doctrines and doctrinal categories designed to implement constitutional meaning, then "contemporary expected application" would be good evidence of how to apply the Constitution's original public meaning if existing doctrines and precedents were generally reasonable implementations of constitutional text and principle.

In fact, I think this is very often what people do. They start with the existing doctrinal structure and take it for granted that existing doctrine (for the most part) is a reasonable implementation even if it is not always the best one, and then reason from doctrines and doctrinal categories to conclusions. Hence it would make sense to say, as I do say, that "Our modern doctrines are consistent with original meaning of `the freedom of speech.'" That is, I believe that our current doctrines are for the most part reasonable applications and implementations of original public meaning.

But if we believe doctrine and doctrinal categories-- as "contemporary expected application" of the Constitution-- are presumptively reasonable, we must always be prepared to criticize doctrine if it strays too far from what we believe to the best interpretation of the Constitution. That is to say, doctrine might be presumptively reasonable, but not conclusively so. And this brings me back to my original post on Justice Thomas and his use of originalist arguments. In Morse v. Frederick Justice Thomas was right to want to go back to first principles. He was wrong in thinking that how people expected things should work in the early 1800s is the best way to apply the Constitution today.
Posted 6:05 PM by JB [link]